One of the most frequently asked questions we have encountered in real estate law is, “Why does my spouse have to sign?” The answer to that question is, because North Carolina recognizes the existence of marital rights in real property.
Many couples today choose to keep their individual property separate, especially property owned before marriage. But in North Carolina, real property spousal rights are written into law. Even if you are the only person listed as the owner on your deed, you acquired the property prior to marriage, or you inherited the property, your spouse has an interest. This marital interest is meant to be seen as a benefit of marriage; one that extends to no other parties, such as children or next of kin.
Known as inchoate interest, the concept first appeared in the American colonies during the 17th century. Colonial officials modeled much of their governance on English common law. The original purpose was intended to make it difficult for one spouse to disinherit the other by conveying away all their real property. I have also heard it explained as a way for a surviving spouse to take at least some ownership (a 1/3 to 1/2 life estate) of their deceased spouse’s property.
I could probably put you to sleep citing case law and excerpts from legal treatises, but the most important thing to take away is that if you are getting a loan or you are selling real property, and you are married (even if you are legally separated and have not finalized the divorce), your spouse will have to sign the deed or deed of trust. Most loan packages have a few other documents which require the spouse’s signature due to federal regulations. Like most things in law, you have options. Documents can be executed when certain circumstances prohibit a spouse from signing at closing. Powers of Attorney, Free Trader Agreements, and Pre/Post Marital Agreements are the most widely used.
If you think there may be an issue with your spouse signing, be sure to check with the closing attorney. You don’t want to be seated at the closing table when this topic comes up. Also keep in mind that deeds and deeds of trust are notarized documents, so the statutory requirements governing the notarial acts must be met (NCGS 10B). The easiest thing to help bring about a smooth closing is to make plans for both spouses to attend.
Stott, Hollowell, Windham & Stancil
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